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TMI Blog2018 (2) TMI 589X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. The ld. AR as contended that after the amendment in the provisions of Section 354(2) vide Finance Act, 2016 w.e.f. 01.06.2016 the limitation for filing the miscellaneous application for rectification of mistake is provided as 6 months from the end of the month in which the order was passed the impugned order was passed in the month of December, 2015 and due to subsequent amendment w.e.f. 01.06.2016 the limitation has expired on 30.11.2016 whereas the present miscellaneous petition has been filed by the Revenue in the month of May, 2017 which is beyond the period of limitation and therefore, not maintainable. On the other hand, ld. DR has submitted that since the order of the Tribunal was passed prior to the amendment by Finance Act, 2016 w.e.f. 01.06.2016 therefore, the limitation available for filing the miscellaneous application seeking rectification is 4 years as per the un-amended provisions of law. He has relied upon the decisions of Hon'ble Madhya Pradesh High Court dated 09.10.2017 in case of District Centeral Cooperative Bank Ltd. vs. Union of India in writ petition No. 4144/2017. Thus, the ld. DR has submitted that the miscellaneous petition filed by the Revenue is wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d period of stay as specified in the order of stay, the Appellate Tribunal may, on an application made in this behalf by the assessee and on being satisfied that the delay in disposing of the appeal is not attributable to the assessee, extend the period of stay, or pass an order of stay for a further period or periods as it thinks fit; so, however, that the aggregate of the period originally allowed and the period or periods so extended or allowed shall not, in any case, exceed three hundred and sixty-five days and the Appellate Tribunal shall dispose of the appeal within the period or periods of stay so extended or allowed: 80[Provided also that if such appeal is not so disposed of within the period allowed under the first proviso or the period or periods extended or allowed under the second proviso, which shall not, in any case, exceed three hundred and sixty-five days, the order of stay shall stand vacated after the expiry of such period or periods, even if the delay in disposing of the appeal is not attributable to the assessee.]] (2B) The cost of any appeal to the Appellate Tribunal shall be at the discretion of that Tribunal." Thus, by Virtue the amendment in the provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r an identical issue and one of us the Judicial Member is party to the said order and held in paras 5 to 8 as under:- "5. We have considered the above submissions and carefully perused the relevant record. The assessee has filed this miscellaneous petition on 10.03.2017 for recalling of order of the Tribunal dated 04.01.2016. The provision of rectification of mistake apparent from record is provided under section 254(2) as under: "254. (1) The Appellate Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit 46. (1A) 48[***] (2) The Appellate Tribunal may, at any time within four years from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under subsection (1), and shall make such amendment if the mistake is brought to its notice by the assessee or the [Assessing] Officer: Provided that an amendment which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the assessee, shall not be made under this sub-section unless the Appellate Tribunal has given notice to the assessee of its int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd has been drastically reduced from 4 years to 6 months and in case of a delay in applying for rectification of mistake apparent from record, the party who is aggrieved by the order of this Tribunal suffering from mistake will be subjected to a great hardship and deprivation of valuable right of pursuing the appeal before the Tribunal. But in the absence of any provision giving power or jurisdiction to this Tribunal to condone the delay in filing the petition for rectification of the mistake apparent from the record, the Tribunal has no option but to proceed strictly as per the provisions as provided in the statute. 7. We have no doubt in our mind that there is an apparent mistake in the order dated 04.01.2016 as the Tribunal has not decided the appeals of the assessee on merit but dismissed the same in limine for want of prosecution. However, the question of rectification of mistake cannot be entertained until and unless the Miscellaneous Petition filed by the assessee is found to be maintainable. The miscellaneous petition filed by the assessee is beyond the period of 6 months from 04.01.2016 and therefore the same is barred by limitation. In the absence of any provision to con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he application and held that there was a mistake apparent on the record which required rectification. Accordingly, the Tribunal recalled its order dated October 27, 2000, for the purpose of entertaining the appeal afresh. The Revenue filed a writ petition in the Gujarat High Court challenging the order dated September 5, 2001. The above challenge by the Revenue was turned down by the Gujarat High Court. The Revenue carried the matter in appeal to the apex court which also dismissed the appeal of the Revenue. The apex court observed that the Tribunal in its original order while dismissing the stock exchange (assessee's) appeal overlooked the binding decisions of the jurisdictional High Court. This mistake was corrected by the Tribunal under section 254(2) of the Act. The Supreme Court held that the rectification of an order stands on the fundamental principle that justice is above all and upheld the exercise of power under section 254(2) of the Act by the Tribunal in recalling its earlier order dated October 27, 2000. Thus, recall of an order is not barred on rectification application being made by one of the parties. In these circumstances, the application would be an applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed in violation of law. For the said purpose, the provisions contained in the Limitation Act, 1963, would be applicable. It is not the law that where the decree is void, no period of limitation shall be attracted at all." Therefore, in this case also the period of four years from the date of order sought to be rectified/recalled will apply as provided in section 254(2) of the Act. This is so even if it is assumed that the order dated December 6, 2006, is a void order. 19 We shall now answer the questions arising in this case as raised by us in paragraph 4 above as under : Question (a) : No. The Tribunal has no power in terms of rule 24 of the Tribunal Rules to dismiss an appeal before it for nonprosecution. Question (b) : The miscellaneous application for recall of an order falls under section 254(2) of the Act and not under section 254(1) of the Act. Question (c) : Does not arise in view of our response to query (b) above. 20. In view of the reasons given hereinabove, we find the Tribunal was correct in dismissing the miscellaneous application by its order dated April 10, 2013, as being beyond the period of four years as provided under section 254(2) of the Act. 21. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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